Press Releases: January 2014

Use of Campaign Photo on Political Blog Is Clearly 'Fair Use'

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal court to dismiss a politically motivated copyright lawsuit.

The case started in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five-year-old campaign photo in a critical post on "The Munger Games" website – a site dedicated to criticism of donor and current chairman of the Santa Clara County Republican Party of Silicon Valley, Charles Munger, Jr. However, the use of the photo is clearly allowed under the "fair use doctrine," which ensures that copyrighted works can be used by others for purposes including criticism and commentary.

"The fair use doctrine protects what Jon Stewart and Steven Colbert do with copyrighted material every night – they use it to illustrate, explain, and amuse. Fair use is a basic building block for free speech, and the Munger Games blogger has as much right to fair use as a TV star," said EFF Intellectual Property Director Corynne McSherry. "This lawsuit is not about copyright infringement but simply a bald attempt to intimidate a political blogger, and the court should shut it down now."

In its amicus brief filed Friday, EFF asked the judge to end this case quickly and decisively, as allowing the lawsuit to proceed would discourage other bloggers from exercising their First Amendment rights to criticize political figures.

"Protection for political criticism and commentary lies at the heart of the First Amendment," said EFF Senior Staff Attorney Matt Zimmerman. "Courts should be highly skeptical of attempts to punish speakers engaged in this kind of political speech. While the blogger in this case is fighting back, copyright lawsuits are expensive and others may be intimidated from speaking in the future. EFF urges the court to dismiss this meritless suit as soon as possible."

Latest Filing in Jewel v. NSA Demands Documents Government Is Trying to Conceal

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court on Friday to order the Department of Justice (DOJ) to release more thorough information about the dragnet electronic surveillance being conducted by the National Security Agency (NSA). The filing in EFF's long-standing case, Jewel v. NSA, also argues that the DOJ must stop pretending that information revealed and publicly acknowledged about government surveillance over the last seven months is still secret.

"The government has now publicly admitted much about its mass spying, but its filings before the court still try to claim broad secrecy about some of those same admissions," EFF Legal Director Cindy Cohn said. "It's long past time for the Department of Justice to stop using overblown secrecy claims to try to prevent an open, adversarial court from deciding whether the NSA's spying is constitutional."

Since the Jewel case was first filed in 2008, the government has used claims of state secrets to fight court review. Last year, documents revealed by former NSA contractor Edward Snowden confirmed many of the case's allegations. As a result of the Snowden disclosures, Judge Jeffrey White of the U.S. District Court for the Northern District of California ordered the government to review all of its filings and release everything that was no longer secret. The court also ordered the government to explain the effects of the disclosures on the case. The DOJ filed its response on December 20, releasing eight, still-heavily redacted, declarations. The government also submitted new declarations, but those declarations largely ignored, and failed to explain the impact of, the flood of new information concerning the NSA's surveillance operations revealed through the press, congressional hearings, or the administration's website icontherecord.tumblr.com.

In our response, EFF argues that the DOJ did not comply with the judge's order and that the agency's submissions fell far short of an accurate and comprehensive presentation of the facts—especially with regard to the "upstream" program where the NSA accesses communications as they flow across the Internet backbone, the participation of AT&T in NSA surveillance, and the lack of demonstrated effectiveness of the bulk collection programs.

"The court ordered the government to review for release all previously secret filings in this case, yet there are still secret documents in the record," EFF Staff Attorney Mark Rumold said. "We at least deserve an explanation for why we can't have access to those documents. Our plaintiffs, as well as the general public, have a right to know what the government has been telling the court in secret."